Bhd. of Locomotive Eng'rs & Trainmen v. United Transp. Union

• Decision Date: 05 December 2012
• Docket Number: No. 11–4177.,11–4177.
• Citation: 700 F.3d 891
• Parties: BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, Petitioner–Appellant, v. UNITED TRANSPORTATION UNION, Defendant–Appellee, Norfolk Southern Railway Company, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

700 F.3d 891

BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, Petitioner–Appellant,

v. UNITED TRANSPORTATION UNION, Defendant–Appellee,Norfolk Southern Railway Company, Respondent–Appellee.

No. 11–4177.

United States Court of Appeals, Sixth Circuit.

Dec. 5, 2012.

ON BRIEF:Michael S. Wolly, Zwerdling, Paul, Kahn & Wolly, P.C., Washington, D.C., for Appellant. Clinton J. Miller III, Erika A. Diehl, United Transportation Union, North Olmsted, Ohio, John B. Lewis, Jeffrey R. Vlasek, Baker & Hostetler LLP, Cleveland, Ohio, for Appellees.

Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

This appeal concerns a three-cornered dispute between two unions—the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU)—and an employer—the Norfolk Southern Railway Company (Norfolk)—that bargains with both of them. UTU filed a grievance on behalf of two of its members at Norfolk who alleged that they lost their seniority upon promotion from trainmen to engineers. The trouble was that BLET's collective bargaining agreement (CBA), which they came under upon becoming engineers, assigned seniority based on date of promotion to engineer rather than date of hire as trainman. An arbitration board heard the grievance and decided in the employees' favor. BLET sought to vacate the arbitration award but was thwarted when the district court granted summary judgment in favor of UTU and Norfolk. BLET now appeals. Because the arbitration board acted within its authority, we AFFIRM.

I. OVERVIEW

A. Factual background

Understanding this dispute requires a brief foray into the arcane world of railroad craft work. Norfolk's “operating” employees, those who run the trains, are generally divided into train service workers and engine service workers. Engineers are engine service workers responsible for operating the locomotives. By contrast, train service workers perform switching and other groundwork, such as separating cars and setting hand brakes; their ranks include conductors and trainmen. BLET is the authorized representative under the Railway Labor Act (RLA) for Norfolk's locomotive engineers, while UTU represents the company's conductors and trainmen. Despite this craft-based division of representation, an operating employee may pay dues to UTU or BLET and have either union handle his grievances. See45 U.S.C. § 152, Eleventh (c).

Norfolk requires all train service employees to advance to an engine service position based on the company's needs through its Locomotive Engineer Training program (the Training program). UTU's CBA governs the terms and conditions of a train service employee's work until he completes the Training program. After that point, an employee is covered by BLET's CBA when performing engine service work.

The underlying dispute here stems from a grievance UTU filed on behalf of two of its members, H.N. Stokes and E.E. Hall, who worked in Norfolk's Virginia Division.¹ After completing the Training program, the men challenged their placement on an engineer seniority roster, arguing they should be ranked in the order they became trainmen, not in the order they ultimately became engineers.

Three sets of agreements—all of which were presented to the arbitration board to resolve this matter—are relevant to this appeal: the national agreement between BLET and Norfolk; the national agreements entered into by UTU and Norfolk; and the regional arrangements to which BLET, UTU, and Norfolk agreed. With respect to the first set, BLET and Norfolk entered into an agreement in 1980 addressing seniority rights of those who completed the Training program (the 1980 BLET Agreement). Article 21(1)(g) of that agreement establishes that the seniority of such employees as engineers “shall date from day of promotion.” Article 21(1)(c), however, deviates from this order. Addressing the relative seniority rights of those promoted to engineer “out of turn,” it permits a senior trainman to displace a junior trainman promoted to be an engineer once that senior trainman is available and other conditions are met.

Norfolk also has several national contracts with UTU that contain provisions relevant to this dispute. The 1985 UTU National Agreement (the 1985 UTU Agreement) requires the selection process for engine service to be based on “relative seniority standing.” On March 7, 1988, UTU and Norfolk signed a Memorandum Agreement (the 1988 UTU Memo Agreement) that established selection and application guidelines for employees entering the Training program. Eight years later, on January 26, 1996, UTU and Norfolk changed the selection process in a new Memorandum Agreement (the 1996 UTU Memo Agreement), which required employees with train service seniority after November 1, 1985 to attend the Training program “in order of their trainmen's seniority.” The 1996 Memo Agreement also defined geographic zones from which employees in Norfolk's Virginia Division would be sent to the Training program.²

Finally, the third set of agreements relevant here are regional arrangements into which BLET, UTU, and Norfolk entered. On February 11, 2002, UTU and Norfolk entered into one such agreement governing the selection of trainmen for the Training program in the zones of the Central Region Hub Network (the 2002 UTU Central Region Agreement), which covers an area separate from the Virginia Division. It provided that, “Employees with trainmen seniority after October 31, 1985 will be sent to [the Training program] in seniority order from [the Training program] promotion zone where the Carrier determines the engineer need exists.” Seniority order would be determined on an “order of selection list ... using [each Central Region Hub Network employee's] earliest trainm[a]n seniority date.” Two days later, on February 13, 2002, Norfolk and BLET entered into a side letter agreement (the 2002 BLET Central Region Side Letter) giving an employee in this area who was promoted to engineer a seniority rank based on the date of his earliest trainman seniority date, not the date of his promotion to engineer. Referring directly to the 2002 UTU Central Region Agreement, the 2002 BLET Central Region Side Letter stated:

This refers to our discussion in conference regarding the proper application of Article 21(1)(c) and (g) of the Engineers['] Schedule Agreement. During conference, it was agreed that subsequent to the date of this understanding the proper application of this provision is that employees on the Central Region Hub Network upon successful completion of the Locomotive Engineer Training Program will remain in the same relative order on the engineer's seniority roster as they appear on the order of selection list, outlined in paragraph 4(a) of the Memorandum Agreement dated February 11, 2002.

Then, on August 16, 2006, UTU and Norfolk entered into a similar regional agreement governing the selection of trainmen for the Training program in the zones of the Pocahontas District (the 2006 UTU Pocahontas Agreement), which also covers an area separate from the Virginia Division. This agreement was akin to the 2002 UTU Central Region Agreement in all of its particulars. The same day, BLET and Norfolk entered into a side letter agreement (the 2006 BLET Pocahontas Side Letter) whose language was nearly identical to the 2002 BLET Central Region Side Letter and similarly referred to the UTU's corresponding regional agreement. Thus, both side letters granted engineer seniority based on the date of an employee's earliest trainman seniority.

On or about March 4, 2008, Norfolk proposed that the same arrangement apply to the establishment of engineer seniority for the Virginia Division. BLET, however, did not agree to this.

Stokes and Hall, the grievants in this case, started working for Norfolk in train service jobs in the Virginia Division's Crewe zone in July 1997. In January 2005, they were required to attend the Training program that would supply engineers for that zone. After they completed the program, they were placed on a Virginia Division engineer seniority roster according to the date they began the Training program. This placed them behind two co-workers from the Roanoke zone, another part of the Virginia Division, each of whom began working as a trainman at or after the time Stokes and Hall started in that position. One of those co-workers started as a trainman in March 1997 and established engineer seniority in July 1998, when he was selected for the Training program due to Norfolk's need for engineers in the Roanoke zone. The second co-worker became a trainman in August 1997 and established engineer seniority in August 1998. Stokes and Hall, in short, had six fewer years of engineer seniority than these two individuals, despite the fact that all four men began working as trainmen at roughly the same time.

B. Procedural history

UTU took exception to the seniority assigned to Stokes and Hall and filed a grievance on their behalf asserting that each should be ranked in the same relative order as his train service seniority. The claim was progressed and eventually referred to Public Law Board No. 7310 (the Board), an arbitration panel created to resolve the dispute pursuant to an agreement UTU and Norfolk entered into on April 6, 2009 (the Arbitration Agreement). The Arbitration Agreement limited the jurisdiction of the Board to those grievances Stokes and Hall “submitted to [the Board] under this agreement, arising out of the interpretation or application of applicable agreements between [Norfolk] and the employees of [Norfolk] represented by [UTU] governing rates of pay, rules or working conditions.” It further stated the Board would not have “jurisdiction of disputes growing out of requests for changes in rates of pay, rules or working conditions nor have authority to change existing agreements or establish new rules.”

Although the dispute was technically between UTU and Norfolk, BLET was...